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Wagoner v. Dollar General Corp.

United States District Court, D. Kansas

June 27, 2013

CONSTANCE WAGONER, Plaintiff,
v.
DOLLAR GENERAL CORPORATION and DG RETAIL, LLC, Defendants

Decided June 26, 2013

Page 1221

For Constance Wagoner, Plaintiff: Brock R. Snyder, LEAD ATTORNEY, Berryton, KS.

For Dollar General Corporation, Defendant: Michael Lee Baumberger, LEAD ATTORNEY, David W. Steed, Klenda Austerman, LLC - Wichita, Wichita, KS.

For DG Retail, LLC, Defendant: David W. Steed, LEAD ATTORNEY, Klenda Austerman, LLC - Wichita, Wichita, KS; Michael Lee Baumberger, LEAD ATTORNEY.

OPINION

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

Page 1222

MEMORANDUM AND ORDER

On December 15, 2011, Defendant Dollar General Corporation removed this action from Kansas state court. Plaintiff Constance Wagoner originally filed a complaint alleging negligence, specifically premises liability, and seeking damages against Dollar General Corporation resulting from her trip and fall on or about November 7, 2010, within a Dollar General store in Park City, Kansas. Plaintiff added DG Retail, LLC as a co-defendant on March 28, 2012. This matter is before the Court on Defendants' Motion for Partial Summary Judgment (Doc. 44). The motion is fully briefed and ready for the Court's ruling. As described more fully below, the Court grants Defendants' motion in part and denies in part.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is " no genuine issue as to any material fact" and that it is " entitled to judgment as a matter of law." [1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] A fact is " material" if, under the applicable substantive law, it is " essential to the proper disposition of the claim." [3] An issue of fact is " genuine" if " the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party." [4]

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[5] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[6]

Page 1223

Once the movant has met this initial burden, the burden shifts to the nonmoving party to " set forth specific facts showing that there is a genuine issue for trial." [7] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[8] Rather, the nonmoving party must " set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." [9] To accomplish this, the facts " must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." [10] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[11] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation," [12] and " cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial." [13]

Finally, summary judgment is not a " disfavored procedural shortcut" ; on the contrary, it is an important procedure " designed to secure the just, speedy, and inexpensive determination of every action." [14]

II. Uncontroverted Facts:

Dollar General Retail, LLC (" DG Retail" ) does business as Dollar General. DG Retail is a subsidiary of Dollar General Corporation (" DGC" ). DG Retail owns and operates the store where the accident occurred and manages the store and all its employees. ...


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